Kerala High Court
Vishnu Somasundaram,L vs Union Of India on 5 February, 2025
Author: Bechu Kurian Thomas
Bench: Bechu Kurian Thomas
W.P.(C) No.24506/21 1
2025:KER:10031
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
WEDNESDAY, THE 5TH DAY OF FEBRUARY 2025 / 16TH MAGHA, 1946
WP(C) NO. 24506 OF 2021
PETITIONER:
VISHNU SOMASUNDARAM
AGED 37 YEARS, S/O. D. SOMASUNDARAM,
T.C.19/131, DR.AMBEDKAR ROAD,
ARAMOOLA P. O., THIRUMALA,
THIRUVANANTHAPURAM - 695 032.
BY ADVS.
SRI.R.ANIL
SRI.M.SUNILKUMAR
SRI.MAHESH BHANU S.
SMT.S.LAKSHMI SANKAR
ADV.RESSIL LONAN
SRI.T.ANIL KUMAR
SRI.THOMAS ABRAHAM
SRI.THOMAS SABU VADAKEKUT
RESPONDENTS:
1 UNION OF INDIA,
REPRESENTED BY THE SECRETARY,
GOVERNMENT OF INDIA, MINISTRY OF FINANCE,
DEPARTMENT OF REVENUE, 6TH FLOOR,
"B" WING, JANPATH BHAVAN,
JANPATH, NEW DELHI - 110 001.
2 JOINT COMMISSIONER OF CUSTOMS (PREVENTIVE),
COMMISSIONER OF CUSTOMS (PREVENTIVE),
CATHOLIC CENTRE, COCHIN - 682031.
3 JOINT DIRECTOR,
DIRECTORATE OF REVENUE INTELLIGENCE,
COCHIN ZONEL UNIT, PALARIVATTAM,
COCHIN - 682 025.
W.P.(C) No.24506/21 2
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4 SENIOR INTELLIGENCE OFFICER,
DIRECTORATE OF REVENUE INTELLIGENCE,
THIRUVANANTHAPURAM,
REPRESENTED BY SPECIAL PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,
KOCHI - 682 031.
*5 THE COMMANDANT,(DELETED)
CENTRAL INDUSTRIAL SECURITY FORCE,
INTERNATIONAL AIRPORT,
THIRUVANANTHAPURAM, PIN - 695013.
*(R5 IS DELETED FROM THE PARTY ARRAY VIDE ORDER DATED
22-01-2025 IN IA 1/2024 IN WP(C) No.24506/2021)
BY ADVS.
SRI.JAISHANKAR V.NAIR, CGC
SRI.R.HARISHANKAR, SC FOR R2
SRI.SREELAL WARRIAR, SC FOR R3& R4
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
22.01.2025, THE COURT ON 05.02.2025 DELIVERED THE FOLLOWING:
W.P.(C) No.24506/21 3
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BECHU KURIAN THOMAS, J.
--------------------------------
W.P.(C) No.24506 of 2021
---------------------------------
Dated this the 5th day of February, 2025
JUDGMENT
Petitioner challenges a show cause notice issued to him under section
124 of the Customs Act, 1962 (for short 'the Act'). Petitioner also challenges
a communication declining to grant an opportunity for cross-examination of
persons whose statements were relied upon in the show cause notice, as well
as the notice fixing a date for personal hearing in the adjudication
proceedings.
2. Petitioner contends that, on 13.05.2019, two passengers, who
arrived at Thiruvananthapuram International Airport from Dubai via Muscat,
were intercepted and on search of their baggage, 25 gold bars weighing
around 25 Kg having a market value of Rs.8.17 Crores were seized. During
the course of verification, the involvement of other persons was also
identified. Petitioner was arrayed as the 8 th accused and he was arrested and
an order of detention under section 3(1) of the COFEPOSA Act was issued,
which was subsequently set aside. In the meantime, Ext.P1 show cause
notice was issued on 07.11.2019, directing the petitioner and other persons
mentioned therein, to show cause, why the gold bars seized on 13.05.2019
should not be confiscated under section 111(d) of the Act, apart from a
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penalty to be imposed on them. According to the petitioner, the show cause
notice has been issued on the basis of statements of various persons, which
were not voluntary and in order to establish his defence, he requested for
cross-examination of those persons. Petitioner pleads that despite such a
request, by Ext.P4 communication, it was declined and the proceedings were
posted for personal hearing as per Ext.P5. Both the aforesaid
communications are under challenge.
3. When the case came up for consideration on 09.11.2021, this Court,
by an interim order, directed that though the adjudication proceedings can
continue, final orders should not be passed without getting further orders from
the court. Thereafter matter has been pending consideration all along.
4. A counter affidavit has been filed by the second respondent stating
that, pursuant to the interception of the two travellers on 13.05.2019, they
gave a statement admitting that gold was being smuggled with the help of a
customs officer by the name of Radhakrishanan and that they have smuggled
large quantities of gold on earlier occasions as well, and he is part of a
smuggling racket. Subsequently, on the basis of the revelation made by those
accused, other persons were also roped in, including the petitioner.
Investigation and forensic analysis of the mobile phones and other materials
have revealed the involvement of the senior customs officer and the
syndicate had smuggled around 680 Kg of gold during the period from
19.10.2018 to 11.05.2019 with the connivance of the customs officer. The
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counter affidavit also states that, of the 32 statements recorded under section
108 of the Act, 20 of them were given by the accused persons themselves,
while 6 of the statements are that of the customs officials and two statements
are that of travel ticket booking agents, apart from two other statements. It is
also pleaded that the statements referred to in the show cause are all
supported by documentary evidence and that the attempt of the petitioner in
seeking cross-examination, is only to delay the proceedings. According to the
respondents, pursuant to the interim order of this Court, though repeated
opportunities were granted for personal hearing, petitioner had not appeared
before the Adjudicating Authority. Respondents allege that petitioner is one
of the kingpins of the smuggling syndicate and that his role is not limited to
just smuggling, but he recruits carriers to the smuggling racket, book tickets
for them and has even employed his relative to coordinate the smuggling
activities and gives necessary directions to the members of the smuggling
syndicate from time to time, thereby playing an active role in smuggling.
5. A counter affidavit has been filed on behalf of the fifth respondent,
stating that he is not a necessary party and requested for deleting him from
the party array.
6. I have heard Sri. R. Anil, the learned counsel for the petitioner,
Sri. R. Harishankar, the learned Standing Counsel for the second respondent,
and Sri. Sreelal N. Warrier, the learned Standing Counsel for respondents 3
and 4.
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7. The challenge against the show cause notice is vague and has no
legal basis. In order to justify a challenge against a show cause notice, there
must be overwhelming material to enable the court to come to a conclusion
regarding the non-est nature of a show cause notice. In the instant case,
there are no materials to question the validity of the show cause notice.
Hence the challenge against the show cause notice is rejected.
8. The limited question that remains for consideration is whether the
refusal to grant an opportunity for cross-examination as per Ext.P4, warrants
any interference.
9. Petitioner is one among the twenty persons against whom
confiscation proceedings have been initiated. The petitioner has requested for
cross-examination of those persons whose statements are being relied upon
by the Adjudicating Authority. The respondents on the other hand contended
that the question of violation of the principle of natural justice will arise only
when any statement of a third party is used against the petitioner while
passing the orders.
10. In this context, it needs to be noted that, though there are
references to 32 statements in the notice, allegedly recorded under section
108 of the Act, 20 of them are by persons who are accused and hence they
cannot be cross-examined during the course of adjudication. Further,
respondents rely upon documentary pieces of evidence to justify the show
cause notice and the statements, according to the respondents, are only
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corroboration of those documents. The statements of any of the witnesses,
who are strangers to the proceedings, if relied upon, may give rise to a
contention that there is a violation of the principles of natural justice.
However, since orders have not been passed, it is too premature a stage for
this Court to arrive at a conclusion that there is a violation of the principles of
natural justice. If the statements of strangers are not used by the
Adjudicating Authority to arrive at a conclusion, it goes without saying that
there cannot arise a situation to allege violation of the principles of natural
justice.
11. It is true as observed in the decisions in Harinderpal Singh
Shergil v. Commissioner of Customs [2010 (259) ELT A19], Canara Bank
and Others v. Debasis Das and Others, (2003) 4 SCC 557 and Andaman
Timber Industries v. Commissioner of Central Excise, Kolkata-II, (2016)
15 SCC 785, that the Adjudicating Authority in its discretion can permit
examination of witnesses. It is also true that the question as to whether in a
given case, the decision declining permission to adduce evidence or cross-
examine persons is correct or not, can be considered after the conclusion of
the proceedings, having regard to the prejudice, if any, that may be caused to
the party on account of such refusal.
12 However, in the decision in Mohammed Fariz & Co v.
Commissioner of Customs [2019 (1) KLT 229], it was observed that
permitting cross-examination of the witnesses at an earlier stage would only
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help the Department to arrive at the right conclusion. It was also observed
that even if the statements are not relied upon, it is premature for the
authority to state whether the statements would be used against the
delinquent or not. Finally, it was held that it is in public interest and in the
interests of justice to permit cross-examination of the two witnesses, whose
statements were recorded by the Adjudicatory Authority.
13. Coming to the facts of the present case, it is noticed that the
adjudicating officer has rejected the request of the petitioner for cross-
examination for reasons mentioned in Ext.P4. The pleadings in the counter
affidavit indicate that 20 of the statements have been taken from persons who
are co-noticees/delinquents and therefore the petitioner cannot ask for cross-
examination of those persons. But as far as others, whose statements are
relied upon in the show cause notice, the reason given in Ext.P4 is that such
cross-examination would not yield any further facts. It is also observed that
the independent witnesses have no liability to support the officials and
therefore they need not be cross-examined. The further reason stated is that
the adjudication proceedings being different from prosecution, cross-
examination is not required to be given.
14. The aforesaid reasons given in Ext.P4 are perverse. The
adjudicating authority cannot conclude at this stage what the cross-
examination would yield. Even if it does not yield anything, it is a requirement
of the principles of natural justice to grant an opportunity to the opposite side.
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Further, the adjudicating authority cannot come to a foregone conclusion that
independent witnesses have no liability to support the officials. The
fundamental requirement of law is that no evidence can be used behind the
back of a person. The said principle applies in all proceedings, even if it is
only an adjudication. Further, nowhere has the authority mentioned that he is
not going to use the statements against the petitioner or other persons.
Hence, for the reasons mentioned above, Ext.P4 communication refusing
permission to cross-examine is liable to be set aside.
15. Having regard to the aforesaid circumstances, Ext.P4 is set aside
and the adjudicating authority shall grant an opportunity for cross-examination
to the petitioner and complete the proceedings at the earliest, in a time-bound
manner. The petitioner shall fully co-operate with the proceedings as well and
in case there is any attempt to delay the proceedings, the adjudicating
authority will be at liberty to proceed with adjudication.
This writ petition is allowed to the above extent.
Sd/-
BECHU KURIAN THOMAS
JUDGE
vps
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APPENDIX OF WP(C) 24506/2021
PETITIONER EXHIBITS
Exhibit P1 THE TRUE COPY OF THE SHOW CAUSE NOTICE OR
NO.DRI/COZU/TVM/06/2019, ISSUED BY THE JOINT
DIRECTOR, DIR DATED 07.11.2019.
Exhibit P2 THE TRUE COPY OF THE REPLY DATED 06.12.2019.
Exhibit P3 THE TRUE COPY OF THE REPLY DATED 21.09.2021.
Exhibit P4 THE TRUE COPY OF COMMUNICATION
C.NO.VIII/10/139/2019-CCP-ADJ. DATED
12.10.2021 OF THE SECOND RESPONDENT.
Exhibit P5 THE TRUE COPY OF NOTICE OF SECOND RESPONDENT
C.NO.VIII/10/139/2019-CCP-ADJ. DATED
25.10.2021.
